no. 14-10018 in the united states court of ......no. 14-10018 in the united states court of appeals...
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No. 14-10018 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT ____________________________
DANIEL FRIAS,
Plaintiff-Appellee,
v.
ARTURO TORREZ, United States Customs and Border Protection Officer, formerly known as John Doe,
Defendant-Appellant.
____________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
____________________________
BRIEF FOR THE APPELLANT ____________________________
STUART F. DELERY Assistant Attorney General SARAH R. SALDAÑA United States Attorney BARBARA L. HERWIG (202) 514-5425 EDWARD HIMMELFARB (202) 514-3547 Attorneys, Appellate Staff Civil Division, Room 7646 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001
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CERTIFICATE OF INTERESTED PERSONS
Daniel Frias v. Arturo Torrez, No. 14-10018 The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the judges
of this court may evaluate possible disqualification or recusal.
Daniel Frias, Plaintiff-Appellee Arturo Torrez, Defendant-Appellant David A. Armendáriz, Esq., Counsel for Plaintiff-Appellee Stuart F. Delery, Assistant Attorney General Sarah R. Saldaña, United States Attorney Barbara L. Herwig, Counsel for Defendant-Appellant Edward Himmelfarb, Counsel for Defendant-Appellant Lisa R. Hasday, Assistant U.S. Attorney, Counsel for Defendant-Appellant /s/ Edward Himmelfarb ______________________________ Edward Himmelfarb Attorney of Record for the Appellant
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STATEMENT REGARDING ORAL ARGUMENT
The appellant is a U.S. Customs and Border Protection agent who has been
sued in his individual capacity and potentially is personally liable for the damages
sought by the plaintiff-appellee. We request oral argument to help the Court
explore the significant issues in this case.
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TABLE OF CONTENTS
Page STATEMENT REGARDING ORAL ARGUMENT STATEMENT OF JURISDICTION.......................................................................... 1 STATEMENT OF THE ISSUES............................................................................... 2 STATEMENT OF THE CASE .................................................................................. 3 A. Background ........................................................................................... 3 B. Facts ....................................................................................................... 4 C. Proceedings Below ................................................................................ 6 SUMMARY OF ARGUMENT ............................................................................... 10 STANDARD OF REVIEW ..................................................................................... 12 ARGUMENT ........................................................................................................... 13
I. THE COMPREHENSIVE REMEDIAL SCHEME UNDER THE IMMIGRATION LAWS PRECLUDES EXTENDING A BIVENS REMEDY TO AN ACTION BROUGHT BY AN ALIEN IN REMOVAL PROCEEDINGS .......................................... 13
A. The Supreme Court Has Never Extended The Bivens
Remedy Since 1980 .................................................................. 13 B. The Ninth Circuit's Decision In Mirmehdi Holding That
The Comprehensive Remedial Scheme Under The INA Precludes Creation Of A Bivens Damages Remedy Is Persuasive And Should Be Followed ........................................ 18
C. The District Court's Decision To Allow A Bivens
Remedy To Proceed Was In Error ............................................ 23
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II. ALTERNATIVELY, AGENT TORREZ IS ENTITLED TO QUALIFIED IMMUNITY ON THE ARREST CLAIM, BECAUSE FRIAS HAS FAILED TO ESTABLISH THAT AGENT TORREZ LACKED ARGUABLE PROBABLE CAUSE TO ARREST HIM ................................................................ 27
A. Even Crediting Frias's Version Of The Facts, Agent
Torrez Is Entitled To Qualified Immunity, Because He Had Arguable Probable Cause For The Arrest ......................... 28
B. The District Court Erred In Focusing On Exclusionary
Rule Principles, Instead Of Arguable Probable Cause ............. 32
CONCLUSION ........................................................................................................ 38 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
Cases: Page(s) Ali v. Gonzales, 440 F.3d 678 (5th Cir. 2006) (per curiam) ................................. 34 Altamirano-Lopez v. Gonzales, 435 F.3d 547 (5th Cir. 2006) .............................. 21 Anderson v. Creighton, 483 U.S. 635 (1987) ........................................................ 34 Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc), cert. denied, 560 U.S. 978 (2010) .......................................... 13-14, 19, 20, 23 Arizona v. United States, 132 S. Ct. 2492 (2012) ........................................... 31, 37 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................... 14, 17 Bagola v. Kindt, 131 F.3d 632 (7th Cir. 1997) ...................................................... 17 Behrens v. Pelletier, 516 U.S. 299 (1996) ............................................................... 1
ii
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Bennett v. Barnett, 210 F.3d 272 (5th Cir.), cert. denied, 531 U.S. 875 (2000)....................................................................................... 15 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) ..........................................................passim Brown v. Illinois, 422 U.S. 590 (1975) ................................................................. 36 Brown v. Lyford, 243 F.3d 185 (5th Cir.), cert. denied, 534 U.S. 817 (2001)....................................................................................... 28 Bush v. Lucas, 462 U.S. 367 (1983) .................................................... 15, 16, 17, 25 Bustos-Torres v. INS, 898 F.2d 1053 (5th Cir. 1990) ........................................... 23 Carlson v. Green, 446 U.S. 14 (1980) ....................................................... 13, 14, 15 Club Retro, L.L.C. v. Hilton, 568 F.3d 181 (5th Cir. 2009) ............................ 30, 37 Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (2001) ............................. 13, 14 Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007) (en banc) ........................... 30 D'Alessandro v. Chertoff, 2011 WL 6148756 (W.D.N.Y. Dec. 12, 2011), appeal pending, No. 12-576 (2d Cir.) .................................. 26 Davis v. Passman, 442 U.S. 228 (1979) .......................................................... 13, 17 Devenpeck v. Alford, 543 U.S. 146 (2004) ........................................................... 28 Diaz-Bernal v. Myers, 758 F. Supp.2d 106 (D. Conn. 2010) ...................... 7, 23, 24 Dukureh v. Hullett, No. C11-1866, 2012 WL 3154966 (W.D. Wash. Aug. 2, 2012) ........................................................................... 26 Florida v. Harris, 133 S. Ct. 1050 (2013) .............................................................. 29 Good v. Curtis, 601 F.3d 393 (5th Cir.), cert. denied, 131 S. Ct. 206 (2010) ....................................................................................... 1
iii
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Haggerty v. Texas Southern Univ., 391 F.3d 653 (5th Cir. 2004) ........................ 12 Hartman v. Moore, 547 U.S. 250 (2006) ......................................................... 23, 29 Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam) ............................................. 30 INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) ......................................... 21, 22, 31 Jenkins v. City of New York, 478 F.3d 76 (2d Cir. 2007) .................................... 35 Johnson v. Jones, 515 U.S. 304 (1995) .................................................................... 1 Judicial Watch, Inc. v. Rossotti, 317 F.3d 401 (4th Cir.), cert. denied, 540 U.S. 825 (2003)....................................................................................... 16 Kareva v. United States, No. 1:12cv267, 2013 WL 97966 (S.D. Ohio Jan. 8, 2013) ................................................................................ 26 Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc) .................... 28 Manunga v. Costa Mesa Police Dept., 2013 WL 3989577 (C.D. Cal. Aug. 1, 2013) ................................................................................ 26 Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir.), cert. denied, 549 U.S. 1096 (2006) ................................................................ 26 Matter of Sandoval, Interim Decision 2725 (BIA 1979) ....................................... 22 Matter of Toro, 17 I. & N. Dec. 340, 1980 WL 121885 (BIA 1980) .................... 22 McCabe v. Parker, 608 F.3d 1068 (8th Cir. 2010) ................................................ 29 Mendenhall v. Riser, 213 F.3d 226 (5th Cir. 2000), cert. denied, 531 U.S. 1071 (2001)..................................................................................... 30 Minneci v. Pollard, 132 S. Ct. 617 (2012) ................................................. 13, 16, 26 Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2012), cert. denied, 133 S. Ct. 2336 (2013) ............................... 10, 18, 19, 20, 25, 26
iv
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Mitchell v. Forsyth, 472 U.S. 511 (1985) ................................................................ 1 Nebraska Beef, Ltd. v. Greening, 398 F.3d 1080 (8th Cir. 2005), cert. denied, 547 U.S. 1110 (2006) ................................................................ 14 Pasco v. Knoblauch, 566 F.3d 572 (5th Cir. 2009) ........................................... 4, 12 Pearson v. Callahan, 555 U.S. 223 (2009) ............................................................. 33 Price v. Roark, 256 F.3d 364 (5th Cir. 2001) ........................................................ 29 Reichle v. Howards, 132 S. Ct. 2088 (2012) ......................................................... 17 Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)....................................................................................... 20 Reno v. Flores, 507 U.S. 292 (1993) ..................................................................... 24 Robinson v. Sherrod, 631 F.3d 839 (7th Cir.), cert. denied, 132 S. Ct. 397 (2011) ..................................................................................... 15 Schweiker v. Chilicky, 487 U.S. 412 (1988) .......................... 13, 15, 16, 17, 20, 25 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) .................................................... 14 Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988) (en banc) ........................ 15, 25 Texas v. Brown, 460 U.S. 730 (1983) ................................................................... 29 Townes v. City of New York, 176 F.3d 138 (2d Cir.), cert. denied, 528 U.S. 964 (1999) .................................................................. 35 Turner v. United States, 2013 WL 5877358 (S.D. Tex. Oct. 31, 2013) ................................................................................................ 26 United States v. Garcia, 179 F.3d 265 (5th Cir. 1999), cert. denied, 530 U.S. 1222 (2000) ................................................................ 30 United States v. Hudson, 405 F.3d 425 (6th Cir. 2005) ........................................ 33
v
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United States v. Janis, 428 U.S. 433 (1976) .......................................................... 35 United States v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003) ................................................................ 31 United States v. Pack, 612 F.3d 341 (5th Cir.), modified, 622 F.3d 383 (5th Cir.), cert. denied, 131 S. Ct. 620 (2010)......................... 29 United States v. Roque-Villanueva, 175 F.3d 345 (5th Cir. 1999) ....................... 35 United States v. Watson, 273 F.3d 599 (5th Cir. 2001) ........................................ 30 Wells v. Bonner, 45 F.3d 90 (5th Cir. 1995) ......................................................... 29 Western Radio Servs. Co. v. U.S. Forest Service, 578 F.3d 1116 (9th Cir. 2009), cert. denied, 559 U.S. 1106 (2010) ...................................... 14 Wilkie v. Robbins, 551 U.S. 537 (2007) ...................... 2, 13, 14, 16, 18, 23, 26, 27 Wren v. Towe, 130 F.3d 1154 (5th Cir. 1997) (per curiam), cert. denied, 525 U.S. 815 (1998) .................................................................. 35 Yongping Zhou v. Holder, 2013 WL 3923446 (C.D. Cal. July 26, 2013) ................................................................................................ 26 Zuspann v. Brown, 60 F.3d 1156 (5th Cir. 1995), cert. denied, 516 U.S. 1111 (1996)..................................................................................... 16
Constitution: First Amendment ............................................................................................... 7, 17 Fourth Amendment ............................. 2, 3, 7, 17, 21, 22, 26, 28, 32, 33, 35, 36, 37 Fifth Amendment ............................................................................................. 17, 22
Statutes: 28 U.S.C. 1291 ......................................................................................................... 1
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28 U.S.C. 1331 ......................................................................................................... 1 28 U.S.C. 2107(b) .................................................................................................... 2 Administrative Procedure Act ............................................................................. 7, 9 Antiterrorism and Effective Death Penalty Act of 1996 ....................................... 20 Declaratory Judgment Act ................................................................................. 7, 10 Federal Tort Claims Act ................................................................................... 1, 7, 9 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 .............. 20 Immigration and Nationality Act: 8 U.S.C. 1226(a) ...................................................................................... 21, 37 8 U.S.C. 1226(b) ............................................................................................ 21 8 U.S.C. 1229a(b) .......................................................................................... 21 8 U.S.C. 1229a(b)(4) ..................................................................................... 21 8 U.S.C. 1229a(c)(2)(B) ................................................................................ 31 8 U.S.C. 1252 ................................................................................................. 23 8 U.S.C. 1252(a)(2)(B)(ii) ............................................................................... 7 8 U.S.C. 1357(a)(1) ....................................................................................... 24 8 U.S.C. 1357(a)(2) ....................................................................................... 24
Regulations: 8 C.F.R. 236.1(d) ................................................................................................... 21 8 C.F.R. 287.3(b) ................................................................................................... 24 8 C.F.R. 287.8(c)(2) ............................................................................................... 24 8 C.F.R. 1003, Subpart C ....................................................................................... 21 8 C.F.R. 1003.38 .................................................................................................... 21
Rules: Rule 4(a)(1)(B), Federal Rules of Appellate Procedure .......................................... 2 Rule 56, Federal Rules of Civil Procedure .............................................................. 1
vii
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Miscellaneous: Michael P. Robotti, Separation of Powers and the Exercise of Concurrent Constitutional Authority in the Bivens Context, 8 Conn. Pub. Int. L.J. 171 (Spring/Summer 2009) ........................................ 18 Laurence H. Tribe, Death by a Thousand Cuts: Constitutional Wrongs without Remedies after Wilkie v. Robbins, 2006-2007 Cato Sup. Ct. Rev. 23 (2007) ...................................................... 18
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STATEMENT OF JURISDICTION
The plaintiff in this Bivens1 and Federal Tort Claims Act action asserted
jurisdiction in district court for the Bivens claims pursuant to 28 U.S.C. 1331. On
October 31, 2013, the district court entered an order that, among other things,
denied summary judgment based on qualified immunity to an agent of the U.S.
Customs and Border Protection. The district court's order is immediately
appealable under 28 U.S.C. 1291 as a collateral order, see Mitchell v. Forsyth, 472
U.S. 511 (1985), to review the purely legal issues raised in this appeal. Behrens v.
Pelletier, 516 U.S. 299, 313 (1996) ("summary judgment determinations are
appealable when they resolve a dispute concerning an 'abstract issu[e] of law'
relating to qualified immunity – typically, the issue whether the federal right
allegedly infringed was 'clearly established'") (citation omitted); id. at 312-13
("Denial of summary judgment often includes a determination that there are
controverted issues of material fact, see Fed. Rule Civ. Proc. 56, and Johnson [v.
Jones, 515 U.S. 304 (1995),] surely does not mean that every such denial of
summary judgment is nonappealable."); Good v. Curtis, 601 F.3d 393, 397 (5th
Cir.), cert. denied, 131 S. Ct. 206 (2010). When an order denying qualified
immunity is appealed, the court of appeals also has jurisdiction over the issue of
1 See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
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whether the district court properly "devise[d] a new Bivens damages action."
Wilkie v. Robbins, 551 U.S. 537, 549 & n.4 (2007).
The notice of appeal, filed on December 30, 2013, is timely under 28 U.S.C.
2107(b) and Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure.
STATEMENT OF THE ISSUES
This action arises out of a traffic stop conducted by Border Patrol Agent
Arturo Torrez of the truck in which the plaintiff, Daniel Frias, was riding. Agent
Torrez stopped the truck, because it appeared to him that there were undocumented
aliens lying down on the truck's backseat. When Agent Torrez questioned Frias
about his citizenship, Frias admitted that he was not "legal." Frias was arrested and
subsequently placed in removal proceedings. Frias contends that the immigration
stop and arrest violated his Fourth Amendment rights. The other occupant of the
vehicle is not a plaintiff in this case.
This appeal presents the following issues:
1. Whether the procedures available for challenging constitutional viola-
tions in the removal process under the Immigration and Nationality Act constitute
"special factors" counseling against the creation of a Bivens remedy in connection
with (a) an allegedly unreasonable immigration stop of the vehicle in which Frias
was traveling and (b) Frias's arrest.
2. Whether Agent Torrez was entitled to qualified immunity, because,
2
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assuming the undisputed facts and Frias's version of the disputed facts, Frias has
not shown that Agent Torrez lacked "arguable probable cause" for the arrest based
on Frias's admission that he was not "legal."
STATEMENT OF THE CASE
A. Background.
The plaintiff, Daniel Frias, brought this Bivens action against Border Patrol
Agent Arturo Torrez, alleging that Agent Torrez violated his Fourth Amendment
rights by pulling over the vehicle in which Frias was riding, without reasonable
suspicion. Frias claims that Agent Torrez stopped the truck principally because he
believed the driver was Hispanic. According to Frias's version of the facts, while
the truck was stopped, Agent Torrez asked him whether he was "legal," and Frias
responded that he was not. On the basis of this admission, Agent Torrez arrested
Frias so that he would be detained pending a decision whether to remove him
under the immigration laws. Frias was subsequently placed in removal proceed-
ings, which eventually were terminated.
The district court denied Agent Torrez's motion to dismiss Frias's amended
complaint and reserved a ruling on qualified immunity until summary judgment.
Following discovery, the district court denied Agent Torrez's motion for summary
judgment based on qualified immunity, finding that genuine issues of material fact
regarding the initial stop precluded summary judgment regarding either the stop or
3
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the arrest, and that, in light of the factual disputes, Torrez was not entitled to quali-
fied immunity regarding the arrest.
Agent Torrez now takes this interlocutory appeal.
B. Facts.
The following discussion sets forth the undisputed facts, along with Frias's
version of any disputed facts. See Pasco v. Knoblauch, 566 F.3d 572, 576 (5th Cir.
2009) ("If the district court found that genuine factual disputes exist, we must
accept the plaintiff's version of the facts as true to the extent supported by the
summary judgment record.").
Frias alleges that, on April 28, 2010, he was driving a flat-bed four-door
Dodge truck on Interstate Highway 20 (I-20), just outside Abilene, Texas, with his
white colleague George Taylor as a passenger. ROA.231-33 (Compl. ¶¶ 17, 26,
34).2 The truck had a company logo on its side, and the model was common in the
area. ROA.231-32 (Compl. ¶¶ 18, 19). The windows into the vehicle were not
tinted and visibility into the cab was clear. ROA.232 (Compl. ¶¶ 24-25). As the
vehicle traveled west on I-20 during daylight hours, ROA.232 (Compl. ¶ 26),
Agent Torrez was on duty in his CBP vehicle, driving on the eastbound side of I-
20. ROA.1103 (Op. at 3).
2 Unless otherwise specified, references to the complaint are to the Second Amended Complaint, filed after the district court largely denied the motion to dismiss the First Amended Complaint.
4
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When he was about fifty yards away, Agent Torrez saw the truck in which
Frias was riding and observed what he believed to be bodies lying in the backseat.
ROA.1103 (Op. at 3). This belief was based on Agent Torrez's 28 years of
experience as a Border Patrol agent, during which he often saw illegal aliens lying
down in vehicles attempting to hide. ROA.333 (Mtn. for Summ. Judg. at 2). At
his deposition, he testified that the bags in the back seat "looked like bodies based
on prior experience[,] what I've seen before." ROA.390 (Torrez Dep. at 126). In
order to investigate further, he turned around onto the westbound side of I-20, and
ran a "1028," or vehicle information check, see ROA.621 (Torrez Dep. at 21), to
determine the origin of the plaintiff's truck. ROA.1103 (Op. at 3). Agent Torrez
pulled up next to the truck, again observing what he believed were bodies in the
back seat. Id.; ROA.377 (Torrez Dep. at 92).3
Frias contends that Agent Torrez stopped the truck "principally upon his
perception that the Truck had a Hispanic driver." ROA.234 (Compl. ¶ 42).
According to Agent Torrez, however, the "1028" revealed that the truck was from
out of the area, and Agent Torrez turned on his emergency lights and pulled the
truck over. ROA.1103 (Op. at 3). The truck stopped at the side of the road, and
Agent Torrez approached the vehicle from the passenger side. Id. The parties
3 Frias contends that the back seat was empty, ROA.826 (Frias Decl. ¶¶ 16-18), although Taylor has confirmed that there were bags on the back seat. ROA.358-59 (Taylor Decl. ¶ 5).
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dispute what happened after the truck stopped, but this is Frias's version: Frias
claims that he was driving, ROA.231 (Compl. ¶ 17), not Taylor,4 and that Agent
Torrez asked Frias, in Spanish, for identification. ROA.239 (Compl. ¶ 62). Frias
claims that he gave Agent Torrez a valid New Mexico driver's license, and that
after reviewing it, Agent Torrez placed Frias in handcuffs. ROA.239 (Compl.
¶¶ 63-67).5 Agent Torrez asked whether Frias had any other form of identification,
and Frias said no. ROA.241 (Compl. ¶¶ 78-79). After asking Taylor for
identification (but, according to Frias, not examining it), Agent Torrez told Frias
that he would spend years in jail if he lied to him, and he asked Frias whether he
was "legal." ROA.241 (Compl. ¶¶ 84-85). "Mr. Frias responded no." ROA.241
(Compl. ¶ 86). On the basis of this admission, Torrez arrested Frias, and Frias was
subsequently placed in removal proceedings, which were eventually terminated.
ROA.255 (Compl. ¶ 110).
C. Proceedings Below.
1. Frias brought this action against Agent Torrez under Bivens, alleging
4 Agent Torrez testified that Taylor was driving, with Frias in the passenger seat. ROA.374-75 (Torrez Dep. at 89-90).
5 Agent Torrez testified that he handcuffed Frias only after questioning him about his immigration status. ROA.706 (Torrez Dep. at 106). This dispute is immaterial; as the district court held in denying the motion to dismiss, the act of handcuffing Frias was not unreasonable, even if Frias is right that it happened before he was questioned about his immigration status. ROA.217 (Order at 12).
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that the initial stop and subsequent arrest violated his Fourth Amendment rights,
and against the United States under the Federal Tort Claims Act (FTCA), alleging
false imprisonment and assault. Frias also sought relief under the Declaratory
Judgment Act and the Administrative Procedure Act (APA).
Agent Torrez and the United States moved to dismiss the First Amended
Complaint, and the district court granted the motion in part. It dismissed, with
prejudice, the declaratory claims against the United States for lack of jurisdiction,
noting that there was no agency action, let alone final agency action, supporting a
waiver of sovereign immunity under the APA. ROA.220-21 (Order at 15-16).
And the court granted the motion to dismiss, without prejudice, the FTCA claims
for assault and false imprisonment, holding, among other things, that the use of
handcuffs by Agent Torrez was reasonable. ROA.210-14 (Order at 15-19). But it
also held that it had jurisdiction despite the jurisdictional bar of 8 U.S.C.
1252(a)(2)(B)(ii), which divests the courts of jurisdiction over certain discretionary
actions of the Attorney General. ROA.210-12 (Order at 5-7). And, relying heavily
on a district court decision from Connecticut, the court concluded that special
factors did not warrant foreclosing Frias from bringing a Bivens action. ROA.212-
14 (Order at 7-9) (citing Diaz-Bernal v. Myers, 758 F. Supp.2d 106 (D. Conn.
2010)). The court declined to rule on Agent Torrez's assertion of qualified
immunity, noting that he was asserting immunity only as to the arrest claim and
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would not be able to avoid discovery even if qualified immunity were granted.
The court also decided that, because some of the allegations of the complaint were
unclear, qualified immunity would be more appropriately decided on summary
judgment. ROA.214-15 (Order at 9-10).
Frias then filed his Second Amended Complaint, and the parties engaged in
some discovery. At the close of discovery, Agent Torrez and the United States
moved for summary judgment.
2. In the order now under appeal, the district court granted the motion in
part and denied it in part.
The court found that disputes of material fact precluded a grant of summary
judgment on the Bivens claim. First, with respect to the stop, the court considered
the question whether there were bags in the back seat of the truck (appearing to be
people hiding) to be crucial and disputed. Agent Torrez testified that he saw
something in the back seat that turned out to be bags, while Frias contended that
there were no bags in the back seat and that he had cleaned the truck that morning.
ROA.1113 (Op. at 13). While there were other factors relevant to reasonable
suspicion, the court held that, without the bags in the back seat, there was nothing
about the truck that gave reasonable suspicion for a stop. ROA.1114 (Op. at 14).
And without the bags, the lack of reasonable suspicion, according to the court, was
clearly established. ROA.1116-18 (Op. at 16-18).
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Second, the court held that the lawfulness of the arrest had to be evaluated in
light of the lawfulness of the stop. ROA.1120 (Op. at 20). But the court deter-
mined that there were disputed material facts regarding both the reason for the stop
and the way in which the arrest occurred. Given the dispute over the reason for the
stop, the court could not say whether Agent Torrez had a lawful purpose in interro-
gating Frias. ROA.1121 (Op. at 21). The court also could not determine whether
"events that occurred during the stop were a continuation of the seizure or gave rise
to a crime unrelated to the stop itself." Id. If Agent Torrez detained Frias after it
became clear that the bags in the back seat were not people who were hiding, then
the detention exceeded the justification for the stop, but if "an unrelated crime" was
committed during the stop, this could have justified the prolonged detention.
ROA.1121-22 (Op. at 21-22). The trouble, according to the court, was that the
facts were in dispute. The court held that if Frias lied to Agent Torrez before
admitting he was an alien, that lie would justify an arrest, but if Frias simply
admitted he was an alien, that was merely an inculpatory statement that was not
separate from the purpose of the stop. ROA.1122 (Op. at 22). Given the fact
disputes, the court could not say whether the arrest was tainted by the allegedly
unlawful stop. ROA.1123 (Op. at 23).
The court also denied summary judgment on the FTCA claims, ROA.1126-
28 (Op. at 26-28), but it granted summary judgment on the remaining APA and
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declaratory judgment claims against Agent Torrez, noting that there was no agency
action and therefore no jurisdiction. ROA.1123-25 (Op. at 23-25).
SUMMARY OF ARGUMENT
In this Bivens action against a Border Patrol agent, Arturo Torrez, Frias
alleges that Agent Torrez lacked reasonable suspicion to conduct an immigration
stop of the truck in which he was riding. Frias alleges that Agent Torrez lacked
reasonable suspicion for the immigration stop and, consequently, lacked probable
cause for his ensuing arrest. Frias was placed in removal proceedings, but those
proceedings have been terminated.
The district court's denial of qualified immunity at the summary-judgment
stage should be reversed for two fundamental reasons:
I. Contrary to the district court's conclusion, Frias has no Bivens remedy
at all. As the Ninth Circuit held in Mirmehdi v. United States, 689 F.3d 975 (9th
Cir. 2012), cert. denied, 133 S. Ct. 2336 (2013), a Bivens remedy should not be
created to allow an alien to bring a damages claim against federal agents connected
with his removal proceedings. The Supreme Court has repeatedly turned down
attempts to extend Bivens into new contexts, and the Ninth Circuit correctly held
that removal proceedings are such a new context. Congress created a comprehen-
sive and intricate remedial scheme in the Immigration and Nationality Act, and the
Supreme Court has held that the existence of such a remedial system is a reason for
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declining to extend the Bivens remedy. Given Congress's repeated attention to
remedies under the INA, its failure to provide damages there could not have been
inadvertent. In addition, immigration issues have a tendency to affect broader
concerns, like diplomacy, foreign policy, and national security. These concerns are
another reason counseling hesitation in extending Bivens.
II. Even if Bivens may be extended to claims like the one brought by
Frias, Agent Torrez is entitled to qualified immunity on the arrest claim.
In order to defeat qualified immunity on the arrest claim at the summary-
judgment stage, Frias must show that Agent Torrez lacked arguable probable cause
– a reasonable (if mistaken) belief that probable cause supported the arrest. Agent
Torrez had probable cause for the arrest based on Frias's admission that he was not
"legal." Frias's position is that once we accept (as we do, solely for purposes of
this appeal) that the initial stop was not supported by reasonable suspicion, it
necessarily follows that the arrest was without probable cause. But the district
court, properly, rejected that view, holding that "[a]n individual is not immune
from arrest or prosecution just because the police effectuate an otherwise valid
arrest in an illegal manner." ROA.1119 (Op. at 19).
The district court, however, did not address whether there was arguable
probable cause for the arrest. In fact, it did not even resolve whether there was
actual probable cause, because the court instead analyzed case law involving the
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application of the exclusionary rule in the criminal context, which it believed was
"instructive." ROA.1120 (Op. at 20). But the analogy is inapt, because the
exclusionary rule does not apply in civil immigration cases, and the case law on the
exclusionary rule cannot be retrofitted into the analysis of arguable probable cause.
The undisputed fact is that when Agent Torrez asked Frias whether he was
"legal," Frias said no. Reasonable officers in the position of Agent Torrez could
have believed that Frias's admission that he was not "legal" provided probable
cause for his arrest, regardless of the validity of the initial stop. The district court
therefore erred in denying Agent Torrez qualified immunity on the arrest claim.
STANDARD OF REVIEW
This Court "review[s] the district court's denial of summary judgment
predicated on qualified immunity de novo." Pasco v. Knoblauch, 566 F.3d 572,
575 (5th Cir. 2009) (citing Haggerty v. Texas Southern Univ., 391 F.3d 653, 655
(5th Cir. 2004)). In that review, "to the extent that the district court found that
genuine factual disputes exist," this Court "accept[s] the plaintiff's version of the
facts (to the extent reflected by proper summary judgment evidence) as true."
Haggerty, 391 F.3d at 655.
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ARGUMENT
I. THE COMPREHENSIVE REMEDIAL SCHEME UNDER THE IMMIGRATION LAWS PRECLUDES EXTENDING A BIVENS REMEDY TO AN ACTION BROUGHT BY AN ALIEN IN REMOVAL PROCEEDINGS.
The district court denied qualified immunity, but an issue that precedes the
determination of qualified immunity is whether Frias may pursue a Bivens remedy
in this case at all. See Wilkie v. Robbins, 551 U.S. 537, 549 n.4 (2007). The
district court erred in allowing him to do so.
A. The Supreme Court Has Never Extended The Bivens Remedy Since 1980.
Although the Supreme Court in Bivens at first accepted that a damages
remedy could be inferred directly under the Constitution, in its two subsequent
decisions, Davis v. Passman, 442 U.S. 228 (1979), and Carlson v. Green, 446 U.S.
14 (1980), the Court reached the end of the road. During the 34 years since it
decided Carlson, the Supreme Court has "responded cautiously to suggestions that
Bivens remedies be extended into new contexts." Schweiker v. Chilicky, 487 U.S.
412, 421 (1988). So cautious has the Court been that it has in fact never extended
Bivens since 1980. See Minneci v. Pollard, 132 S. Ct. 617, 622-23 (2012) (citing
cases); Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001) ("Since
Carlson we have consistently refused to extend Bivens liability to any new context
or new category of defendants."); Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir.
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2009) (en banc), cert. denied, 560 U.S. 978 (2010). As the Court has made clear, a
Bivens action is "not an automatic entitlement no matter what other means there
may be to vindicate a protected interest," and "in most instances we have found a
Bivens remedy unjustified." Wilkie, 551 U.S. at 550; see Western Radio Servs.
Co. v. U.S. Forest Service, 578 F.3d 1116, 1119 (9th Cir. 2009), cert. denied, 559
U.S. 1106 (2010) (Court has "focused increased scrutiny on whether Congress
intended the courts to devise a new Bivens remedy, and in every decision since
Carlson, across a variety of factual and legal contexts, the answer has been 'no.'");
Nebraska Beef, Ltd. v. Greening, 398 F.3d 1080, 1084 (8th Cir. 2005), cert.
denied, 547 U.S. 1110 (2006) ("There is a presumption against judicial recognition
of direct actions for violations of the Constitution by federal officials or employees
* * *.") (citation and internal quotation marks omitted).
In Malesko, the Supreme Court observed that Bivens "rel[ied] largely on
earlier decisions implying private damages actions into federal statutes" – deci-
sions from which the Court has since "retreated" – that reflect an understanding of
private rights of action that the Court has "abandoned." 534 U.S. at 67 & n.3. See
also Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (Bivens liability has not been
extended to new contexts, "[b]ecause implied causes of action are disfavored");
Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004) ("a decision to create a private
right of action is one better left to legislative judgment in the great majority of
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cases"); Robinson v. Sherrod, 631 F.3d 839, 842 (7th Cir.), cert. denied, 132 S. Ct.
397 (2011) ("Bivens is under a cloud, because it is based on a concept of federal
common law no longer in favor in the courts").
In addition, the Supreme Court has altered the standard to make it more
difficult for a court to find reasons to create a Bivens remedy. Initially, courts
were to infer a Bivens remedy unless there were "special factors" counseling hesi-
tation or there was another remedy that Congress explicitly considered a substitute
for Bivens. See Carlson, 446 U.S. at 18-19. Over the years, however, the Court
has expanded the concept of "special factors" and has accepted alternative reme-
dies as adequate, whether or not they were explicitly declared to be adequate and
whether or not a particular plaintiff even had a statutory remedy. See Chilicky,
487 U.S. at 423; Bush v. Lucas, 462 U.S. 367, 388 (1983). Under Bush and
Chilicky, "it is the comprehensiveness of the [alternative] statutory scheme
involved, not the 'adequacy' of specific remedies extended thereunder, that
counsels judicial abstention." Spagnola v. Mathis, 859 F.2d 223, 227 (D.C. Cir.
1988) (en banc); see Bennett v. Barnett, 210 F.3d 272, 276 (5th Cir.), cert. denied,
531 U.S. 875 (2000) (Postal Reorganization Act is a comprehensive remedial
scheme, which "(via the plaintiffs' collective bargaining agreements) pre-empts
Bivens claims like those asserted in this case"). The Court has explained that
"special factors" counsel hesitation when Congress's failure to provide a damages
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remedy has not been "inadvertent." Chilicky, 487 U.S. at 423; see Zuspann v.
Brown, 60 F.3d 1156, 1161 (5th Cir. 1995), cert. denied, 516 U.S. 1111 (1996)
("not an oversight") (internal quotation marks omitted).
In Wilkie, the Supreme Court not only reinforced the limits it had estab-
lished in Bush, Chilicky, and similar decisions, but also directed courts that do not
find that an alternative statutory remedy is a "special factor" counseling against
creation of a Bivens remedy to undertake an additional analysis before agreeing to
create such a remedy: "weighing reasons for and against the creation of a new
cause of action, the way common law judges have always done." 551 U.S. at 554;
see Minneci, 132 S. Ct. at 621.
Wilkie did not even require that the alternative remedy be a remedy at all; it
could also be a "process." 551 U.S. at 550. In referring to an "alternative, existing
process for protecting the interest," id. (emphasis added), Wilkie echoed earlier
language in Chilicky, which spoke of "meaningful safeguards or remedies for the
rights of persons." 487 U.S. at 425 (emphasis added). A "process" or "safeguard,"
thus, need not be a court remedy. See, e.g., Judicial Watch, Inc. v. Rossotti, 317
F.3d 401, 410-11 (4th Cir.), cert. denied, 540 U.S. 825 (2003) ("With respect to
alleged misconduct by individual IRS employees, Congress has also provided for a
variety of 'safeguards and remedies.' Specifically, Congress created the Treasury
Inspector General for Tax Administration, an entity separate and distinct from the
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IRS, with responsibility for investigating allegations of misconduct by IRS
employees.") (citation omitted); Bagola v. Kindt, 131 F.3d 632, 643 (7th Cir. 1997)
(noting that in Bush v. Lucas, "procedural safeguards" under the Civil Service
Reform Act included "the power to hold a 'trial-type hearing' and to secure the
attendance and testimony of agency officials").
The Supreme Court has never extended Bivens to Fourth Amendment
seizure claims in the immigration context.6 And twice in the past five years, the
Court has gone out of its way to raise doubts about the existence of a Bivens
remedy in cases in which the parties had not even suggested that one was unavail-
able. See Reichle v. Howards, 132 S. Ct. 2088, 2093 n.4 (2012) ("We have never
held that Bivens extends to First Amendment claims. * * * We need not (and do
not) decide here whether Bivens extends to First Amendment retaliatory arrest
claims."); Iqbal, 556 U.S. at 675 ("Petitioners do not press this argument, however,
so we assume, without deciding, that respondent's First Amendment claim is
actionable under Bivens.").
It is not surprising, then, that commentators have suggested that the Supreme
6 Although this is a Fourth Amendment claim, like the claim in Bivens, it does not follow ineluctably that a remedy exists here. The Supreme Court has limited the Bivens remedy by context and has not authorized it on an amendment-by-amendment basis. Compare Davis v. Passman, 442 U.S. 228 (1979) (allowing a Bivens remedy in a Fifth Amendment due-process case), with Schweiker v. Chilicky, 487 U.S. 412 (1988) (declining to allow a Bivens remedy in a Fifth Amendment due-process case).
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Court has altered the "core holding" of Bivens. Laurence H. Tribe, Death by a
Thousand Cuts: Constitutional Wrongs without Remedies after Wilkie v. Robbins,
2006-2007 Cato Sup. Ct. Rev. 23, 70 (2007). As Professor Tribe has put it, "the
best that can be said of the Bivens doctrine [after Wilkie] is that it is on life support
with little prospect of recovery." Id. at 26. See Michael P. Robotti, Separation of
Powers and the Exercise of Concurrent Constitutional Authority in the Bivens
Context, 8 Conn. Pub. Int. L.J. 171, 183 (Spring/Summer 2009) ("The sheer
breadth of these exceptions [as applied in Wilkie] indicates that Bivens has lost all
force; a Bivens remedy is no longer a viable means to remedy a constitutional
violation. Under the current formulation of the Bivens exceptions, there are almost
no circumstances in which a Bivens remedy must be recognized.").
B. The Ninth Circuit's Decision In Mirmehdi Holding That The Comprehensive Remedial Scheme Under The INA Precludes Creation Of A Bivens Damages Remedy Is Persuasive And Should Be Followed.
Applying the principles set forth in the previous section, the Ninth Circuit in
Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2012), cert. denied, 133 S. Ct.
2336 (2013), held that aliens who had been detained during removal proceedings
could not pursue a Bivens remedy against the federal officers who had been
involved in their detention. That decision is correct, and its reasoning should be
followed in this case.
1. Mirmehdi was an immigration case. The plaintiffs were four Iranian
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brothers who applied for political asylum in 1998. The following year, the govern-
ment commenced removal proceedings against them after their former immigration
attorney was charged with immigration fraud and began to cooperate with a federal
investigation. Eventually, the plaintiffs were granted withholding of removal,
because of a likelihood of mistreatment if removed to Iran, and because the gov-
ernment failed to show that they were involved in terrorist activity.
The Mirmehdi plaintiffs then filed suit against various defendants, and
included a Bivens action against two federal agents, one with the FBI and one the
INS, who had investigated them in connection with the MEK, an Iranian group that
was at the time designated as a foreign terrorist organization, and one of whom had
testified at a bond revocation hearing. The district court dismissed most of the
claims, and the remainder were settled. The Ninth Circuit affirmed, but on an
entirely different theory.
Agreeing with the Second Circuit, the Ninth Circuit held that "'Congress has
established a substantial, comprehensive, and intricate remedial scheme in the con-
text of immigration.'" 689 F.3d at 982 (quoting Arar, 585 F.3d at 572). Under
Supreme Court precedent, "[t]he complexity and comprehensiveness of the exist-
ing remedial system is another factor among a broad range of concerns counseling
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hesitation before allowing a Bivens remedy." Id.7 Although Congress did not
provide any damages remedy in the INA, "Congress's failure to include monetary
relief can hardly be said to be inadvertent," in light of the "multiple changes to the
structure of appellate review in the Immigration and Nationality Act." Id. Another
concern for the court was that "immigration issues 'have the natural tendency to
affect diplomacy, foreign policy, and the security of the nation,' which further
'counsels hesitation' in extending Bivens." Id. (quoting Arar, 585 F.3d at 574).
2. The decision in Mirmehdi is correct. The INA is a comprehensive
statutory scheme, and "[c]ongressional attention" to the INA has been "frequent
and intense." Chilicky, 487 U.S. at 425. See Mirmehdi, 689 F.3d at 982 ("despite
multiple changes to the structure of appellate review in the Immigration and
Nationality Act, Congress never created [a damages] remedy"). The INA deals
with the highly complex subject of immigration, and Congress – in both the
Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 – carefully recast and stream-
lined the INA's provisions, including those relating to remedies. Congress's deci-
7 The Ninth Circuit observed that "[i]t is well established that immigrants' remedies for vindicating the rights which they possess under the Constitution are not coextensive with those offered to citizens." Mirmehdi, 689 F.3d at 981 (citing Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999) ("As a general matter * * * an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.")).
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sion not to provide damages in the INA certainly has not been inadvertent.
Instead of damages, the INA offers quasi-judicial hearings and appeals, as
well as judicial review, of many significant government decisions. For example,
aliens like the plaintiff who are detained by immigration authorities pursuant to 8
U.S.C. 1226(a) are entitled to adversarial bond hearings, 8 C.F.R. 236.1(d), with
the right to appeal to the BIA, 8 C.F.R. 1003.38. If bond is revoked, 8 U.S.C.
1226(b), the alien is entitled to an adversarial revocation hearing, with similar
appeal rights. If action is taken to remove the alien, he is entitled to an adversarial,
trial-type hearing on that, too. 8 U.S.C. 1229a(b); cf. Altamirano-Lopez v.
Gonzales, 435 F.3d 547, 550 (5th Cir. 2006) (alien not entitled to those rights at
hearing on motion to reopen). During such a hearing, the alien is entitled to
examine and attempt to discredit the evidence relied on by the government, to
cross-examine government witnesses, and to present his own evidence and
witnesses. 8 U.S.C. 1229a(b)(4); 8 C.F.R. 1003, Subpart C.
Moreover, while the exclusionary rule generally does not apply in removal
proceedings, see INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984) ("we are
persuaded that the * * * balance between costs and benefits comes out against
applying the exclusionary rule in civil deportation hearings held by the INS"), an
alien who believes that he was stopped without reasonable suspicion in violation of
the Fourth Amendment may move during the removal process to suppress the
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evidence obtained during the stop. See, e.g., Matter of Toro, 17 I. & N. Dec. 340,
1980 WL 121885 (BIA 1980). In removal proceedings, the question is not whether
the evidence was obtained in violation of the Constitution, as it is when there is an
exclusionary rule; the question, instead, is whether the alien has been denied
fundamental fairness:
To be admissible in deportation proceedings, evidence must be probative and its use fundamentally fair so as to not deprive respondents of due process of law as man-dated by the fifth amendment. We have concluded that evidence resulting from a search and seizure in violation of fourth amendment rights is not for that reason alone excludable from civil deportation proceedings. See Matter of Sandoval, Interim Decision 2725 (BIA 1979). Every fourth amendment violation will not of necessity result in a finding that the admission of resulting evidence is fundamentally unfair. The circumstances surrounding an arrest and interrogation, however, may in some cases render evidence inadmissible under the due process clause of the fifth amendment.
Matter of Toro, 17 I. & N. Dec. at 343 (citations omitted); see Lopez-Mendoza,
468 U.S. at 1050-51 & n.5 (citing Matter of Toro and noting that "the BIA held
that evidence will be excluded if the circumstances surrounding a particular arrest
and interrogation would render use of the evidence obtained thereby 'fundamen-
tally unfair'"; and in holding that the exclusionary rule generally does not apply in
civil deportation proceedings, Court stated that "we do not deal here with egregious
violations of Fourth Amendment or other liberties that might transgress notions of
fundamental fairness and undermine the probative value of the evidence obtained")
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(emphasis added); Bustos-Torres v. INS, 898 F.2d 1053, 1055 (5th Cir. 1990)
("The test for admissibility of evidence in a deportation proceeding is whether the
evidence is probative and whether its use is fundamentally fair so as not to deprive
the alien of due process of law.").
Judicial review of removal orders is also available. 8 U.S.C. 1252. In addi-
tion, aliens who are detained are entitled to file a petition for habeas corpus to
challenge their detention. These procedures provide another "means to be heard,"
Wilkie, 551 U.S. at 552, and they counsel hesitation in judicial creation of a Bivens
damage remedy to supplement them. See Arar, 585 F.3d at 574 ("Hesitation is a
pause, not a full stop, or an abstention; and to counsel is not to require. 'Hesitation'
is 'counseled' whenever thoughtful discretion would pause even to consider.").
C. The District Court's Decision To Allow A Bivens Remedy To Proceed Was In Error.
The district court held, in denying Agent Torrez's earlier motion to dismiss,8
that special factors did not counsel against the creation of a Bivens remedy in this
case. The court primarily relied on a case from the District of Connecticut, Diaz-
8 Special Agent Torrez raised this argument in his motion to dismiss but, after it was rejected by the district court, did not raise it again in his motion for summary judgment, given the law-of-the-case concerns. Agent Torrez did not file an interlocutory appeal of the order denying his motion to dismiss, and this appeal is our first opportunity to present the issue to this Court. Because the issue is "'directly implicated'" by the invocation of qualified immunity here, this Court has jurisdiction to consider it. Wilkie v. Robbins, 551 U.S. at 549 n.4 (quoting Hartman v. Moore, 547 U.S. 250, 257 n.5 (2006)).
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Bernal v. Myers, 758 F. Supp.2d 106 (D. Conn. 2010). Reliance on that decision
was mistaken.
In the district court's assessment, the rationale of Diaz-Bernal was that the
INA "'does not govern the specific claims at issue (that is, constitutional violations
that preceded removal proceedings)'" and that, absent a Bivens remedy, "'the
present plaintiffs would have no forum in which to seek a remedy for the defen-
dants' alleged constitutional violations.'" ROA.213 (Order at 8) (quoting Diaz-
Bernal, 758 F. Supp. 2d at 128-29). Contrary to the district court, however, this
rationale creates a false division between the initial stop and arrest on the one hand
and the removal proceedings on the other. Frequently, it is the stop and arrest
together that are the first step for removal of an alien who is not lawfully present in
the United States. Undocumented aliens rarely walk into an immigration office
and ask to be deported. The stop and arrest are an integral part of the process. See
Reno v. Flores, 507 U.S. 292, 307 (1993) ("the deportation process ordinarily
begins with a warrantless arrest"); 8 U.S.C. 1357(a)(1) & (2); 8 C.F.R. 287.8(c)(2).
The removal proceedings under the INA are precisely the way an alien challenges
the initiation of proceedings against him. 8 C.F.R. 287.3(b).
It is undoubtedly true that the removal proceedings do not provide a forum
for the alien to seek damages for alleged constitutional violations during the stop
and arrest, but that is not the key legal question when analyzing whether a Bivens
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remedy may be created. Under Bush and Chilicky, "it is the comprehensiveness of
the [alternative] statutory scheme involved, not the 'adequacy' of specific remedies
extended thereunder, that counsels judicial abstention." Spagnola v. Mathis, 859
F.2d at 227. In enacting and amending the INA, Congress gave "frequent and in-
tense" attention to the statutory scheme, Chilicky, 487 U.S. at 425, and "despite
multiple changes to the structure of appellate review in the Immigration and
Nationality Act, Congress never created [a damages] remedy." Mirmehdi, 689
F.3d at 982. "Special factors" counsel hesitation when Congress's failure to
provide a damages remedy has not been "inadvertent." Chilicky, 487 U.S. at 423.
"Congress is in a better position to decide whether or not the public interest would
be served by creating" a damages remedy. Bush, 462 U.S. at 390. A Bivens
remedy need not be created simply because the alternative remedy does not offer
compensation, as Frias argued below. ROA.172 (Pl. Resp. to Motion to Dism. at
19) ("there is no actual compensatory remedy" in removal proceedings). The
"absence of statutory relief for a constitutional violation * * * does not by any
means necessarily imply that courts should award money damages against the
officers responsible for the violation." Chilicky, 487 U.S. at 421-22.
The Ninth Circuit's decision in Mirmehdi holds that a Bivens remedy should
not be extended to the "immigration context." Mirmehdi, 689 F.3d at 983; see id. at
981 ("Deportation proceedings are such a context, unique from other situations
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where an unlawful detention may arise."). Although this Court and other circuits
have not yet decided whether or not to follow Mirmehdi, several district courts
have followed its holding,9 and two more have specifically declined to create a
Bivens remedy for the alien to challenge alleged Fourth Amendment violations in
the initial arrest. See Kareva v. United States, No. 1:12cv267, 2013 WL 97966
(S.D. Ohio Jan. 8, 2013) (arrest without probable cause); Dukureh v. Hullett, No.
C11-1866, 2012 WL 3154966, at *5 (W.D. Wash. Aug. 2, 2012) ("Dukureh claims
Fourth Amendment violations by federal agents during an initial arrest").10
9 Turner v. United States, 2013 WL 5877358 (S.D. Tex. Oct. 31, 2013) (deportation of teenager who repeatedly lied about identity to officials); Manunga v. Costa Mesa Police Dept., 2013 WL 3989577 (C.D. Cal. Aug. 1, 2013) (wrongful pre-removal detention); Yongping Zhou v. Holder, 2013 WL 3923446 (C.D. Cal. July 26, 2013) (wrongful detention); D'Alessandro v. Chertoff, 2011 WL 6148756 (W.D.N.Y. Dec. 12, 2011) (detention without periodic custodial reviews), appeal pending, No. 12-576 (2d Cir.).
10 The district court's reliance on Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir.), cert. denied, 549 U.S. 1096 (2006), ROA.213 (Order at 8), where this Court considered a qualified-immunity appeal in a Bivens case against an immigration agent, is misplaced. The question posed here – whether a Bivens remedy is available at all in the immigration context – was completely absent from that case. The Court simply assumed a Bivens remedy existed; it never discussed alternative remedies or any of the post-Bivens cases that addressed whether a Bivens remedy is available, and in fact the decision was issued before the Supreme Court had even decided Wilkie v. Robbins or Minneci v. Pollard, its two most recent ventures in this area. In addition, the agent who filed the appeal in Martinez-Aguero did not argue in his brief that a Bivens remedy was unavailable in a case challenging immigration matters in light of the INA; his argument was that the Fourth Amendment did not apply at all, because aliens not admitted to the United States have no constitutional rights.
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In this case, Frias was placed in removal proceedings but was ultimately
released when those proceedings were terminated. That termination itself vindi-
cates Frias's challenge to his initial stop and arrest. See Wilkie, 551 U.S. at 551-52
(Robbins "exercised his right to jury trial on the criminal complaints" against him
and achieved "rapid acquittal"; this constituted a "procedure to defend and make
good on his position" and did not justify creation of a Bivens remedy based on the
charges).
For these reasons, the district court erred in holding that Frias was entitled to
pursue a Bivens remedy here.
II. ALTERNATIVELY, AGENT TORREZ IS ENTITLED TO QUALIFIED IMMUNITY ON THE ARREST CLAIM, BECAUSE FRIAS HAS FAILED TO ESTABLISH THAT AGENT TORREZ LACKED ARGUABLE PROBABLE CAUSE TO ARREST HIM.
Even if a Bivens remedy were available to an alien who is arrested and
placed in removal proceedings following a roadside stop, the district court erred in
denying qualified immunity to Agent Torrez on the arrest claim.11 A plaintiff
claiming false arrest "must clear a significant hurdle to defeat qualified immunity.
'[T]here must not even "arguably" be probable cause for the search and arrest for
11 We do not raise qualified immunity with respect to the stop claim; we assume, solely for purposes of this appeal, that Agent Torrez lacked reasonable suspicion for the stop. (Our argument in Point I, however, respecting the availa-bility of a Bivens remedy, applies to both the stop and the arrest. If there is no Bivens remedy, both claims here must be dismissed.)
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immunity to be lost.'" Brown v. Lyford, 243 F.3d 185, 190 (5th Cir.), cert. denied,
534 U.S. 817 (2001) (citation omitted). In other words, if reasonable officers could
have believed there was probable cause, even if the court later finds that probable
cause was absent, the defendants are entitled to qualified immunity.
Thus, to defeat qualified immunity, Frias must show that, on his version of
the facts, Agent Torrez did not have arguable probable cause to arrest him based on
Frias's undisputed statement that he was not "legal." He has not done so, and the
district court's reliance on the "fruit of the poisonous tree" doctrine is mistaken;
that doctrine has no relevance in the removal context.
A. Even Crediting Frias's Version Of The Facts, Agent Torrez Is Entitled To Qualified Immunity, Because He Had Arguable Probable Cause For The Arrest.
In light of Frias's admission that he was not "legal," Agent Torrez had at
least arguable probable cause to arrest him.
1. When a plaintiff claims that he was arrested in violation of the Fourth
Amendment, and the defendant moves for summary judgment based on qualified
immunity, the plaintiff must adduce evidence showing the absence of probable
cause. See Devenpeck v. Alford, 543 U.S. 146, 152 (2004) ("a warrantless arrest
by a law officer is reasonable under the Fourth Amendment where there is
probable cause to believe that a criminal offense has been or is being committed");
Lacey v. Maricopa County, 693 F.3d 896, 918 (9th Cir. 2012) (en banc) ("To
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maintain an action for false arrest against Wilenchik, Lacey must plead facts that
would show Wilenchik ordered or otherwise procured the arrests and the arrests
were without probable cause."); McCabe v. Parker, 608 F.3d 1068, 1075 (8th Cir.
2010) ("Lack of probable cause is a necessary element of all the claims [the
plaintiffs] brought arising from the allegedly unlawful arrests."); Price v. Roark,
256 F.3d 364, 369 (5th Cir. 2001) (quoting Wells v. Bonner, 45 F.3d 90, 95 (5th
Cir. 1995)) ("we have found that '[i]f there was probable cause for any of the
charges made * * * then the arrest was supported by probable cause, and the claim
for false arrest fails'").12
Probable cause is a "practical and common-sensical standard" that is based
on a "totality of the circumstances." Florida v. Harris, 133 S. Ct. 1050, 1055
(2013). "A police officer has probable cause to conduct a search when 'the facts
available to [him] would "warrant a [person] of reasonable caution in the belief"'
that contraband or evidence of a crime is present." Id. (quoting Texas v. Brown,
460 U.S. 730, 742 (1983) (plurality opinion)). "The probable cause requirement
does not demand any showing that such a belief is correct or more likely true than
false." United States v. Pack, 612 F.3d 341, 352 n.7 (5th Cir.) (citation and inter-
12 Cf. Hartman v. Moore, 547 U.S. at 265-66 ("Because showing an absence of probable cause will have high probative force, and can be made mandatory with little or no added cost, it makes sense to require such a showing as an element of a plaintiff's [malicious prosecution] case, and we hold that it must be pleaded and proven.").
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nal quotation marks omitted), modified, 622 F.3d 383 (5th Cir.), cert. denied, 131
S. Ct. 620 (2010); see United States v. Watson, 273 F.3d 599, 602-03 (5th Cir.
2001) ("The arresting officer need only know with 'fair probability' that the
defendant committed the felony, which requires more than a 'bare suspicion' but
less than a preponderance of evidence.") (quoting United States v. Garcia, 179 F.3d
265, 269 (5th Cir. 1999), cert. denied, 530 U.S. 1222 (2000)).
Indeed, when a defendant raises qualified immunity as a defense, the ques-
tion becomes whether the plaintiff has demonstrated the absence of "arguable (that
is, reasonable but mistaken) probable cause for the arrests." Club Retro, L.L.C. v.
Hilton, 568 F.3d 181, 207 (5th Cir. 2009). As this Court has stressed:
When an individual asserts a claim for wrongful arrest, qualified immunity will shield the defendant officers from suit if "'a reasonable officer could have believed [the arrest at issue] to be lawful, in light of clearly established law and the information the [arresting] officers possessed.' Even law enforcement officials who 'reasonably but mistakenly conclude that probable cause is present' are entitled to immunity."
Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000), cert. denied, 531 U.S.
1071 (2001) (bracketed words in original) (quoting Hunter v. Bryant, 502 U.S.
224, 227 (1991) (per curiam)). See Cortez v. McCauley, 478 F.3d 1108, 1120
(10th Cir. 2007) (en banc) ("law enforcement officials who reasonably but
mistakenly conclude that probable cause is present are entitled to immunity").
2. An arrest in this context, of course, is not an arrest for a crime; it is a
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means of detaining the alien pending a decision whether to remove him under the
immigration laws. Removal is a civil matter. Arizona v. United States, 132 S. Ct.
2492, 2499 (2012) ("Removal is a civil, not criminal, matter."); Lopez-Mendoza,
468 U.S. at 1038 ("deportation proceeding is a purely civil action to determine
eligibility to remain in this country, not to punish an unlawful entry"); United
States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002), cert. denied, 537 U.S.
1135 (2003) ("Removal hearings are civil proceedings, not criminal * * *."). To
demonstrate that Agent Torrez lacked arguable probable cause to arrest him in
order to detain him pending possible removal, Frias would have to show that he
was lawfully present in the United States. See 8 U.S.C. 1229a(c)(2)(B) (alien has
the burden of proving, "by clear and convincing evidence, that the alien is lawfully
present in the United States pursuant to a prior admission."); Lopez-Mendoza, 468
U.S. at 1039 ("In many deportation cases the INS must show only identity and
alienage; the burden then shifts to the respondent to prove the time, place, and
manner of his entry"). Not only did Frias not make such a showing but he actually
told Agent Torrez that he was not "legal." ROA.214 (Compl. ¶¶ 85-86).
An alien who admits to a Border Patrol agent that he is not "legal" cannot
possibly show that the agent lacked probable cause (let alone arguable probable
cause) to arrest him. See Lopez-Mendoza, 468 U.S. at 1045 (describing regula-
tions requiring that "no one be arrested unless there is an admission of illegal
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alienage or other strong evidence thereof").13 That is exactly where we are in this
case, and as we will now show, the district court's theory for denying qualified
immunity on the arrest claim addresses the wrong legal question.
B. The District Court Erred In Focusing On Exclusion-ary Rule Principles, Instead Of Arguable Probable Cause.
In analyzing whether there was probable cause for the arrest, the district
court did not actually focus on the question of probable cause, despite the fact that
Frias's admission made the answer to that question obvious. Instead, the court
analyzed the completely different question whether evidence obtained after an
unlawful stop would be excluded in a subsequent criminal trial. That is the wrong
question here. There is no exclusionary rule in removal cases, other than for
"egregious" Fourth Amendment violations.
1. The district court mentioned the issue of probable cause in its
decision, but it did so primarily by discussing the parties' conflicting arguments:
"The parties disagree whether Torrez had probable cause to arrest Frias and, more
importantly, whether and to what extent the alleged illegality of the initial stop
affects the Court's analysis of the subsequent arrest." ROA.1119 (Op. at 19). The
court explained that Agent Torrez was arguing that probable cause was satisfied by
13 This assumes, of course, that the agent does not possess additional information that contradicts the alien's admission. Frias makes no claim there is such contrary information here.
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Frias's admission that he was not "legal," while Frias was arguing that "the legality
of the arrest is tied to the legality of the stop, and, because the stop violated his
constitutional right, so too did the later arrest." Id. Frias was also arguing that,
once Agent Torrez realized there were no people being smuggled in the rear of the
truck, he had no basis on which to continue to detain Frias and the eliciting of the
admission was illegal. Id.
While the court held, contrary to Frias's position, that "[a]n individual is not
immune from arrest or prosecution just because the police effectuate an otherwise
valid arrest in an illegal manner," ROA.1119 (Op. at 19) (citing United States v.
Hudson, 405 F.3d 425, 440 (6th Cir. 2005)), the court then shifted its focus away
from probable cause for the arrest and toward the exclusionary rule in a subsequent
prosecution. The reason for this shift, the court explained, was that, in its view, the
case law on exclusion of evidence in criminal proceedings was "instructive" on the
issue of whether the arrest of Frias was lawful after an unlawful stop. ROA.1120
(Op. at 20).14
14 Oddly, the district court justified its shift to this different legal issue by invoking qualified immunity. The court maintained that the "driving concern" of qualified immunity, like that of the Fourth Amendment, was to hold officials accountable, and that, given "these complementary interests," it "seems appropriate to consider the legality of the arrest in light of the lawfulness of the preceding stop." ROA.1120 (Op. at 20). But contrary to the district court, the "driving concern" of qualified immunity is not to hold officers accountable; it is to protect them from the burdens of litigation, as Pearson v. Callahan, 555 U.S. 223 (2009),
33
(….footnote continued)
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2. The district court's focus on the law of exclusion of evidence in this
immigration case is wrong. The exclusionary rule does not apply in an immigra-
tion case, and in any event, the case law on the exclusionary rule has no relevance
to whether an arrest was supported by arguable probable cause.
In Wong Sun v. United States, 371 U.S. 471 (1963), the Supreme Court held
that certain evidence was "fruit of the poisonous tree" and had to be excluded as
evidence in a criminal trial, because "it would not have come to light but for the
illegal actions of the police." Id. at 488. Here, however, Frias was not prosecuted;
he was placed in civil removal proceedings, where the doctrine of "fruit of the
poisonous tree" and the exclusionary rule do not apply. See Lopez-Mendoza, 468
U.S. at 1050 ("we are persuaded that the * * * balance between costs and benefits
comes out against applying the exclusionary rule in civil deportation hearings held
by the INS"); Ali v. Gonzales, 440 F.3d 678, 681 (5th Cir. 2006) (per curiam) ("the
exclusionary rule does not ordinarily apply to removal proceedings").
More important, the "fruit of the poisonous tree" doctrine and the exclusion-
ary rule do not apply in a civil damages action like this one. "In the complex and
the very case the court cited, states: "we have made clear that the 'driving force' behind creation of the qualified immunity doctrine was a desire to ensure that '"insubstantial claims"' against government officials [will] be resolved prior to discovery.'" Id. at 231 (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)). The need for accountability on the part of public officials is the reason that the immunity is qualified and not absolute, but it is hardly the "driving concern" of qualified immunity.
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turbulent history of the rule, the Court never has applied it to exclude evidence
from a civil proceeding, federal or state." United States v. Janis, 428 U.S. 433, 447
(1976); Jenkins v. City of New York, 478 F.3d 76, 91 n.16 (2d Cir. 2007) ("This
Court previously has held that the fruit of the poisonous tree doctrine cannot be
invoked to support a section 1983 claim, for the doctrine 'is an evidentiary rule that
operates in the context of criminal procedure' and 'has generally been held to apply
only in criminal trials.'") (quoting Townes v. City of New York, 176 F.3d 138, 145
(2d Cir.), cert. denied, 528 U.S. 964 (1999)); Wren v. Towe, 130 F.3d 1154, 1158
(5th Cir. 1997) (per curiam), cert. denied, 525 U.S. 815 (1998) ("Supreme Court
has never applied the exclusionary rule to civil cases, state or federal"). This is
especially true when the evidence to be introduced in removal proceedings is the
alien's identity and immigration status. See United States v. Roque-Villanueva,
175 F.3d 345, 346 (5th Cir. 1999) ("Even if the Defendant was illegally stopped,
neither his identity nor his INS file [is] suppressible.").
For these same reasons, the district court erred in relying on exclusionary-
rule cases holding that evidence must be excluded when the "taint" of the original
Fourth Amendment violation has not been sufficiently "purged." ROA.1120-22
(Op. at 20-22). The court never explained why this case law is in any way relevant
to the immigration removal process, where the exclusionary rule does not apply.
The principal case to which the district court turned for "guidance," ROA.1120
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(Op. at 20), was Brown v. Illinois, 422 U.S. 590 (1975), a murder case. In Brown,
the petitioner's arrest was indisputably without probable cause, 422 U.S. at 605
("impropriety of the arrest was obvious" and detectives essentially conceded as
much), and the question in Brown was whether a confession that followed Miranda
warnings should have been excluded at the criminal trial, despite the warnings,
because the "causal chain" between the confession and the unlawful arrest had not
been broken. Brown, 422 U.S. at 602. Brown provides no "guidance" about the
issue in this case – whether an arrest is based on probable cause if predicated on an
admission following an unlawful stop. It deals entirely with exclusion of evidence.
Nevertheless, working backward from exclusion principles – which, again,
have no relevance to immigration removal proceedings (absent an "egregious"
Fourth Amendment violation) – the district court set up a distinction between
crimes that were related to the stop and crimes that were separate from the reasons
for the stop. In the court's view, if Agent Torrez's version of facts is correct, and
Frias lied to him, that could support an arrest for lying to a federal agent, but if
Frias's version of facts is correct, all he did was admit that he was not "legal," and
the arrest based on that admission was not separate from the reasons for the stop.
ROA.1122 (Op. at 22). The district court's distinction is creative – and it might be
persuasive in a case in which the person was arrested for a crime and subsequently
prosecuted – but, as we have noted, the arrest here was not for a crime; it was for
36
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unlawful presence in the United States, which renders a person subject to removal
under the immigration laws, a civil process, and not to criminal prosecution.
Arizona v. United States, 132 S. Ct. at 2499; see also 8 U.S.C. 1226(a) ("On a
warrant issued by the Attorney General, an alien may be arrested and detained
pending a decision on whether the alien is to be removed from the United States.").
The statement that Frias made, admitting that he was not "legal," provided Agent
Torrez with probable cause to arrest for that purpose. At the very least, there was
arguable probable cause, in that reasonable officers in Agent Torrez's position
could have believed that there is probable cause to arrest an alien who admits that
he is not "legal," Club Retro, L.L.C., 568 F.3d at 207, even if a court later holds
that the initial stop was not based on reasonable suspicion.
Exclusionary-rule principles in criminal cases have little application to civil
actions seeking damages for false arrest under the Fourth Amendment. In a
criminal case, evidence might be excluded because a search accompanying the
arrest was unreasonable or because a post-arrest interrogation was not preceded by
Miranda warnings. But the fact that evidence is ultimately excluded does not
necessarily mean that there was not probable cause for the original arrest. Indeed,
if evidence is excluded in a criminal case because it was obtained in violation of
the Fourth Amendment, the government may still proceed with the prosecution,
and it is often possible to convict without the tainted evidence. In contrast, a civil
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damages action claiming false arrest does not look at whether the evidence
obtained might be excluded at a criminal trial; the question is simply whether there
was probable cause for the arrest.
Because, in this case, the district court's decision ultimately does not even
resolve the issue of probable cause – let alone arguable probable cause – it offers
no valid rationale for its ruling. By relying on exclusionary-rule principles that
have no application to removal proceedings, all it does is to force Agent Torrez to
stand trial in this case and face personal liability in damages. In short, it was not
clearly established that Border Patrol agents who determine that probable cause
supports arresting an alien may be held liable for doing so if their earlier stop later
turns out not to have been supported by reasonable suspicion. Agent Torrez is
entitled to qualified immunity on the arrest claim.
CONCLUSION For the foregoing reasons, the district court's order should be reversed and
the case remanded with instructions to dismiss all Bivens claims against Agent
Torrez because there is no Bivens remedy, or, alternatively, to dismiss the arrest
claim based on qualified immunity.
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Respectfully submitted,15
STUART F. DELERY Assistant Attorney General SARAH R. SALDAÑA United States Attorney BARBARA L. HERWIG (202) 514-5425 EDWARD HIMMELFARB (202) 514-3547 Attorneys, Appellate Staff Civil Division, Room 7646 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001
APRIL 2014
15 The Department of Justice gratefully acknowledges the assistance of Elizabeth Purcell, a student at the Georgetown University Law Center, in the preparation of this brief.
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CERTIFICATE OF COMPLIANCE
I certify that this brief is proportionately spaced, using Times New Roman,
14 point type. Based on a word count under Microsoft Word 2010, this brief
contains 9,659 words, including the footnotes, but excluding the tables, statement
of related appeals, certificates, and addenda.
/s/ Edward Himmelfarb ______________________________ Edward Himmelfarb Attorney for the Appellant
Case: 14-10018 Document: 00512607181 Page: 51 Date Filed: 04/24/2014
CERTIFICATE OF SERVICE
I hereby certify that on April 24, 2014, I served the foregoing Brief for the
Appellant by filing the brief through the ECF system, with which all counsel are
registered.
/s/ Edward Himmelfarb ______________________________ Edward Himmelfarb Attorney for the Appellant
Case: 14-10018 Document: 00512607181 Page: 52 Date Filed: 04/24/2014